~ A Journal of Democracy and Public Affairs

State advocates cruelty, justified by law

How did the United States arrive at a point where it surpasses even China in the cruelty it metes out to people who attract the state’s displeasure? After a pro forma trial, Chinese authorities throw their troublemakers into bad prisons for long periods, and good luck if you leave one of those dungeons with your health. Now United States authorities do the Chinese better by half, or more. ICE agents and border patrol take away your children.

Cruelty just keeps growing, even as justifications for these practices become more bizarre. Authorities use legal language to defend torture and kidnapping. Let’s look at differences in self-justification as well as practice between government torturers or interrogators, and border patrol who snatch children from their parents.

Enhanced interrogators convince themselves their victims are complicit in attacks on the United States. At least some torturers believe revenge is justified. Moreover, they claim, their techniques might obtain actionable intelligence. Not so with border patrol who take children from their mothers. They know the children have done nothing to deserve the horrific treatment they receive. In fact, the children and their families have come to border patrol for help. They need protection. Instead, border patrol take advantage of the families’ vulnerability.

Let’s look at differences in self-justification as well as practice between government torturers or interrogators, and border patrol who snatch children from their parents.

Second, enhanced interrogators convince themselves the law permits them to use coercive methods anyone else would call torture. Interrogators might think of it as legal torture, or justified mistreatment. Border patrol, by contrast, claim laws and procedures require them to remove children from their families. They have no choice but to follow the law. If you bring your children with you, we must take them away.

Third, enhanced interrogators offer an implicit or explicit deal. Give us information we want, and we will not mistreat you any longer. We will let you sleep. We will not strap you to a waterboard again. We won’t but you into the box again. No such deal exists for children removed from their families. Border patrol does not care whether families are reunited. Procedures or policies to reunite families do not exist. Border patrol will say as much. “Don’t expect to see your children again. Families don’t exist here.”

Fourth, enhanced interrogators destroy video recordings of their practices, because they know people outside their organization will not stand for these methods. They go to great lengths do hide their activities, even calling their prisons ‘black sites’. Border patrol, on the other hand, brag about their practices. They believe most people support what they do. If you disagree with our policies, take your complaint to the president.

All of these comparisons suggest that law, as we traditionally conceive of law, no longer holds in the United States.

Fifth, enhanced interrogators explicitly put themselves outside the framework of domestic law. We are at war, they contend. Laws of war might prohibit mistreatment of prisoners, but international law usually has more give to it than domestic law. Border patrol, by contrast, uses well defined criminal procedure to regulate its conduct. We plan to charge you with a felony, agents tell immigrants. Therefore we must separate you from your children, because that is what we do with prospective felons. If we find you are not a felon after all, three or more years down the line, then perhaps you can locate your children before we deport you.

All of these comparisons suggest that law, as we traditionally conceive of law, no longer holds in the United States. We know that because government authorities appeal to law to justify actions that are obviously cruel, immoral, and illegal. They clearly do not care what the law states. Thomas More famously says to William Roper, his son-in-law, “This land is planted thick with laws, laws that protect all of us. What will you do, Roper, when they are all swept away? What will protect us from the Devil then?”

More knew a sovereign, unprincipled king could treat mistreat principled men and women, yet he granted the king benefit of law anyway. The United States has passed well beyond sovereigns who do whatever they want. The country has a secret security state as well, to do whatever it wants. The security state used to operate primarily abroad. Now it operates at home as well. These agents of the state use the law to practice and justify cruelty that no other country in the world would even consider.

Laws no longer protect anyone, because government itself cut down every sheltering tree. A strongman comes to power. He understands that to gain more strength, empower your agents to treat the weak as inhumanely as you can. When you demonstrate and enforce your ability to mistreat people who come to you for help because they have no protection, you corrupt the entire purpose of law. Laws no longer protect the weak from the sovereign, or from anyone else with power. Instead, the sovereign uses law to make the weak suffer.

Update 1: To avoid a scene, border patrol agents tell parents they want to take their children briefly, to bathe them or let them rest. Then parents and children do not see each other again. How is that for a comparison to Buchenwald, where guards told new inmates they just needed to take a shower before they received their clean clothes?

Update 2: You might wonder why I chose China for comparison in the opening sentence. After Stalin’s death in 1954, and Mao’s rise, China took its place as the preeminent police state of the twentieth century. I lived there for two years in the early 1990s. Guards, law enforcement officers, soldiers, people in uniform appeared everywhere. The state treated some people like animals, or worse than animals. That is how you treat the weak in a police state.

Leaders in the United States do not care to disguise their country’s corruption. They promote it.

As China prepares to displace the United States in economic and military power, the United States aims to eclipse China as the globe’s leading police state. China still has its prisons, and the state knows how to deal with troublemakers. Yet Beijing does not brag about breaking up families or torturing people, the way our president and attorney general brag about their willingness to commit these crimes. China wants respect, so it keeps its crimes discreet. Leaders in the United States do not care to disguise their country’s corruption. They promote it.

Update 3: Attorney General Jeff Sessions not only announced kidnapping as national policy in a speech a few weeks ago. Now he appears eager to commit blasphemy as he defends the policy in another speech:

During a speech to law enforcement officers in Fort Wayne, Indiana, earlier in the day, Sessions said that his department’s separation of migrant families was not “unusual or unjustified” but instead a matter of law — Christian law, in fact. “Persons who violate the law of our nation are subject to prosecution. I would cite you to the Apostle Paul and his clear and wise command in Romans 13 to obey the laws of the government because God has ordained them for the purpose of order,” Sessions said, according to NBC News. “Orderly and lawful processes are good in themselves and protect the weak and lawful.”

Attorney General Sessions begins to sound like leaders of the Islamic State. Why do fanatics of a certain stripe appeal to scripture and religious authority to justify their immoral acts?

I would cite you to the Apostle Paul and his clear and wise command in Romans 13 to obey the laws of the government because God has ordained them for the purpose of order.

Aside from edging toward blasphemy when he enlists God’s support for the Devil’s work, Sessions commits three more errors.

First, no precedent, unwritten law, written law, or administrative procedure in the United States requires immigration officials to remove children from their families.

Second, Paul is wrong when he writes we must always obey those in authority. The principle that no authority obligates one to obey an unjust or immoral law is well established.

Third, scripture or religiously based law has never grounded law or policy in this country.

The founders affirmed the third point repeatedly. They rested their confidence in secular law, for a multitude of reasons. For the attorney general to cite scripture in support of any policy, let alone one this atrocious, tells you he is unfit for his office.